Political Science IUB

10/12: Political Theory Symposium Series

THE ICING ON THE CAKE:

COMPLICITY, SPEECH, AND SAME-SEX MARRIAGE

ABSTRACT

In Lakewood, Colorado, a baker refused to prepare a wedding cake for a same-sex couple because he believed that doing so would force him to be complicit in the sin of same-sex marriage. Although the idea of complicity is well-developed in tort and criminal law, it is less clearly understood in the context of speech. Can speech alone make individual citizens complicit? If so, what difference does that make for civic responsibility? In this paper, I develop the concept of complicity and apply it to the baker’s case. I concede that the baker would be complicit in the “sin” through the coerced “speech” of cake-baking, but I nevertheless conclude because his religious duty coincides with an additional obligation to obey antidiscrimination law, his right to avoid complicit speech does not necessarily trump other obligations. I examine this conflict through the lens of a framework focusing on double-duties, and then do the same for the state’s dilemma over its conflicting duties to not coerce speech and to prevent discrimination. In the end, I argue that both the baker and Colorado have dirty hands.

Judy Failer is an Associate Professor in the Department of Political Science.